State v. Deleo

By the WHOLE COURT.

ROGERS, J.

Defendant was prosecuted under a bill of information charging him with the possession of intoxicating liquors for beverage purposes. He was found guilty as charged and sentenced to pay a fine of $750 and the cost of prosecution, and to be imprisoned in tbe parish jail for a term of 90 days, and, in default of payment of the fine and costs, to imprisonment in the parish jail for a term of 2 years. This appeal is from said conviction and sentence.

Defendant has not supported his appeal by argument or by brief. The record contains only a motion and order of appeal based solely on the ground that the verdict was contrary to law and the evidence. There is no motion to quash, no motion in arrest, no motion for a new trial, no bill of exception, and no assignment of errors.

In these circumstances, and if there be no error patent on the face of tire record, this court must affirm the judgment. State v. Maniacol, 153 La. 1053, 97 South. 37.

We do not find any error in so far as the conviction is concerned, but we are of the opinion that the court below exceeded its powers in imposing upon defendant a term of 2 years’ imprisonment in default of payment of tbe fine and costs.

Act No. 39 of 1921 (Ex. Sess.) has expressly provided (in section 3) the penalty to be imposed for violations of its provisions. The penalty set forth for the second or subsequent offense is a fine of not less than $100 nor more than $1,000, and imprisonment of not less than 30 days and not more than 12 months.

The authority of the judge to impose imprisonment in, default of payment of the fine and costs was derived from section 980 of the Revised Statutes. Under the terms of the statute the alternative sentence of imprisonment is limited to a, period not exceeding one year.

Where upon the face of the record it appears that a sentence has been imposed which is unauthorized by law, such sentence will be set aside on appeal, though there he no bill of exception nor motion to that effect, and the case will be remanded to be further proceeded with according to law. State v. Anderson, 125 La. 779, 51 South. 846; State v. McCue, 141 La. 417, 75 South. 100; State v. Daniel, 141 La. 423, 75 South. 102; State v. Guidry, 142 La. 441, 76 South. 849.

Eor the .reasons assigned, the judgment convicting the defendant is affirmed, but the sentence imposed upon him is set aside, and this case is remanded to the district court in order that the defendant may be sentenced according to law.

O’NIELL, O. L, subscribes to the decree, being of the opinion that the sentence should be limited to the penalty imposed by Act 39 of 1921, which is not enlarged by section 980 of Revised Statutes.